Hager v. National Semiconductor Corporation CASE NO. 110CV188671
DATE: 19 June 2014 TIME: 9:00 LINE NUMBER: 1
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Wednesday 18 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 19 June 2014, the motion of plaintiff Michael Hager (“Plaintiff”) to suppress a deposition transcript pursuant to Code of Civil Procedure section 2025.520, subdivision (g), was argued and submitted. Defendant National Semiconductor Corporation (“Defendant” or “National”) filed a formal opposition to the motion in which it also requests the imposition of monetary sanctions.

All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).

Statement of Facts

Plaintiff was born in 1965 with severe birth defects, including mental retardation, skeletal and limb deformation, severely impaired circulation, and chromosomal abnormalities. Prior to Plaintiff’s birth, his mother worked at the Fairchild Semiconductor facility in Mountain View. Defendant National is the successor in interest of Fairchild Corporation (“Fairchild”), which owned and operated the facility where Plaintiff’s mother was employed.

According to the allegations of the complaint, during her employment with Fairchild, Plaintiff’s mother worked in a “clean room” where she was exposed to numerous teratogenic, genotoxic, and reproductively toxic chemicals. Plaintiff alleges that these chemicals were a direct and proximate cause of his birth defects. Plaintiff claims that the owners of Fairchild knew or should have known of the potential harm that could result from exposure to the chemicals Plaintiff’s mother was exposed to during her employment with the company and failed to take adequate steps to protect its workers. Plaintiff further alleges that he and his family were unaware of the cause of his birth defects until December of 2008, when Plaintiff’s mother learned of attorneys that were investigating the link between birth defects and chemicals used in the semiconductor industry.

Based upon these allegations, Plaintiff instituted this action against Defendant (as Fairchild’s successor in interest) in December of 2010, raising claims for negligence, ultra hazardous activity liability, willful misconduct, fraud, premises liability, and strict products liability.

Discovery Dispute

On 11 March 2014, National took the deposition of Paul Hager (“Mr. Hager”), Plaintiff’s 85-year-old father. Plaintiff’s counsel was present at the deposition, along with attorney Marc Katz (representing National) and attorney Jeffrey Lawson (representing Mr. Hager).

During the deposition, Mr. Hager testified that he was born in Indonesia in 1929 and moved to Holland when he was 20 or 21 years of age. (Depo. Transcript of Paul Hager (“Hager Depo.”), p. 21:1-6, attached to Decl. of Mark Katz in Support of Def.’s Opp. to Pl.’s Mot. to Suppress, Ex. 1.) While in Holland, Mr. Hager met and married Plaintiff’s mother. (Id., p. 21:9-24.) Following their marriage, Mr. Hager and his wife moved to California and, in 1965, Mrs. Hager gave birth to Plaintiff at El Camino Hospital in Santa Clara County. (Id., pp. 22:4, 23:13-15.) Mr. Hager and Plaintiff’s mother were divorced in 1989 (id., p. 26:16-21) and it is undisputed that, prior to March of 2013, Mr. Hager had not participated in his son’s litigation.

During the deposition, it became clear that, in March of 2013, National retained private investigator Nichols Smith (“Mr. Smith”) to locate and interview Mr. Hager, and that Mr. Hager and Mr. Smith met on multiple occasions. Mr. Hager testified that, at the first meeting, Mr. Smith informed him that he was a private investigator working for National—the successor in interest to Fairchild—and that he had contacted Mr. Hager concerning the lawsuit filed by his son against National. (Id., p. 30:25-31:1-2.) As a result of the meetings with Mr. Smith, Mr. Hager signed two declarations under the penalty of perjury indicating that Mr. Hager and Plaintiff’s mother were aware that Plaintiff’s developmental problems may be related to Plaintiff’s mother’s exposure to chemicals while working at Fairchild as early as the late 1960’s. (See Decl. of Paul Hager, ¶ 10, attached to the Decl. of Nichols Smith in Support of Def.’s Opp. to Pl.’s Mot. to Suppress, Ex. 1.) Specifically, Mr. Hager declared that “[a]t around that time, when [Plaintiff] was about two years old, I recall that Gerda Hager and I had discussions with our doctor, Dr. McGann, about [Plaintiff’s] physical and developmental problems [and that] I recall Dr. McGann suggesting that [Plaintiff’s] medical problems may have been caused by Gerda’s working around chemicals at her job at Fairchild.” (Id., ¶¶ 8 and 9.)

Mr. Hager corroborated the statements in his declarations at his deposition, indicating that the statements were true when he made the declarations and continued to be true at the time of the deposition. (Hager Depo., pp. 36:2-25-37:1-3.)

During the deposition, it also became clear that Mr. Hager’s attorney (Jeffrey Lawson) may be associated with defense counsel. Specifically, Mr. Hager testified that, prior to the deposition, defense counsel and Mr. Smith picked him up from his home and the three of them drove to Mr. Lawson’s office, where they went over Mr. Hager’s upcoming deposition testimony. (Id., pp. 70:19-25, 71:1-15, 72:1-7.)

On 28 April 2014, counsel for National received a voicemail message from Mr. Lawson indicating that Mr. Hager had terminated his representation and was retaining Plaintiff’s counsel as his attorney. (Decl. of Katz, ¶ 14.)

On 28 April 2014, Mr. Hager sent a letter to the deposition officer rejecting his deposition transcript. In the letter, Mr. Hager indicated the following reasons for rejecting the transcript:

My deposition was taken under circumstances in which I was misled by my attorney, Jeff Lawson, and that may have created inaccuracies. Mr. Lawson contacted me without my solicitation, advised me that he would “serve as my attorney” at the deposition, and advised me that he would serve to protect my interests. He also led me to believe that he represented my son in this action.

During the course of my March 11, 2014 deposition, I learned for the first time that attorney Scott Peebles and other attorneys represented my son, not Mr. Lawson. After my March 11, 2014 deposition, I contacted Mr. Lawson and asked him to identify who was paying his fees for my representation, as I had not been paying him. He advised me that defendant Fairchild was paying his fees. This was a complete surprise to me. I now understand that he served interests that were different than and adverse to my own.

Had I known that Jeff Lawson and defense counsel, Marc Katz, had a conflict with my or my son’s interests, I would have sought different counsel for my deposition, including my son’s counsel. I would not have relied on Mr. Lawson to represent me. Accordingly, my testimony was given under the misrepresentations of my counsel and must be nullified. I do not approve it. (Decl. of Scott Peebles in Support of Pl.’s Mot. to Suppress, Ex. 2.)

On 29 April 2014, Plaintiff’s counsel sent defense counsel a meet and confer letter, reiterating Mr. Hager’s reasons for rejecting the deposition transcript and seeking a stipulation for the suppression of Mr. Hager’s deposition transcript. (Id., Ex. 5.)

Defense counsel responded to Plaintiff’s counsel’s letter on 2 May 2014, refusing to stipulate to the suppression of the deposition transcript. (Decl. of Katz, Ex. 5.) In the letter, defense counsel stated the following:

There was nothing improper whatsoever in the circumstances leading up to Mr. Hager’s deposition, or at the deposition itself. The only apparent impropriety is that your firm is now representing two parties who appear to have irreconcilably conflicting interests.

Our investigator, Nic Smith, contacted Mr. Hager—who was not a party and was not represented by counsel—interviewed him, and obtained two declarations from him. When Mr. Hager was informed that he would be deposed, he said that he wanted counsel to represent him but could not afford to pay. [National] agreed to pay for his counsel. Mr. Hager was represented by independent counsel at his deposition, and was deposed for more than four hours, including more than two hours of questioning by plaintiff’s counsel. Mr. Hager’s testimony is fatal to your client’s claims, and thus we are not surprised that you are making every possible effort to suppress it. There is, however, absolutely no merit to plaintiff’s position.

As a preliminary matter, it is unclear from your correspondence how—or whether—Mr. Hager would have testified differently if he had not been represented by Mr. Lawson. Mr. Hager had already set forth his testimony in two detailed declarations before his deposition, and the substance of his testimony at his deposition was that those declarations were true and accurate. . . . (Decl. of Katz, Ex. 5.)

On 16 May 2014, after it became clear that counsel for the parties could not resolve their dispute, Plaintiff filed the motion presently before the Court, asking the Court to suppress Mr. Hager’s deposition transcript.

National filed an opposition to the motion on 9 June 2014, and Plaintiff filed a reply on 13 June 2014.

Discussion

I. Plaintiff’s Motion to Suppress

Plaintiff seeks relief under Code of Civil Procedure section 2025.520, subdivision (g), which provides that, “on a seasonable motion to suppress the deposition, accompanied by a meet and confer declaration . . . , the court may determine that the reasons given for the failure or refusal to approve the transcript require rejection of the deposition in whole or part.” (Code Civ. Proc. [“CCP”], § 2025.520, subd. (g).)

Plaintiff’s position can be summarized as follows: Mr. Hager is an 85-year-old immigrant who is unfamiliar with the adversarial nature of the legal system in the United States; Mr. Hager “carried a vague (and inaccurate) perception that his son’s case was part of some kind of non-adversarial, government sponsored program created to help persons with his son’s disabilities”; Mr. Hager was led to believe that his cooperation with Mr. Smith and National would benefit his son; Mr. Lawson engaged in unethical conduct when he failed to inform Mr. Hager of the nature of his association with National; and Mr. Lawson’s allegedly unethical conduct, including allowing defense counsel to meet with Mr. Hager prior to the deposition and refusing Plaintiff’s counsel’s request to do the same, has tainted Mr. Hager’s testimony. (Mem. of Ps & As in Support of Mot. to Suppress, pp. 9-10.)

Plaintiff has submitted a declaration executed by Mr. Hager substantiating the above allegations. Based upon Mr. Hager’s declaration and the alleged ethical violations of Mr. Lawson, Plaintiff contends that the deposition transcript must be suppressed under Code of Civil Procedure section 2025.520.

For the reasons set forth below, there are at least three problems with Plaintiff’s motion. First, the Court questions whether Plaintiff’s motion is procedurally proper. That is, whether an alleged ethical violation may operate as the basis to suppress a deposition transcript under Code of Civil Procedure section 2025.520. Second, assuming the motion is properly before the Court, Plaintiff has not established that an ethical violation occurred in this case. Third, and most important to the Court’s analysis, Plaintiff has not demonstrated that Mr. Hager’s deposition testimony would have been any different in the absence of the alleged ethical violation.

A. Nature of Motion

As indicated above, Code of Civil Procedure section 2025.520, subdivision (g) authorizes motions to suppress a deposition transcript. The provision, however, does not indicate the grounds upon which motions to suppress may be brought. Looking at the language of the section as a whole, the Court is convinced that the provision is designed to allow for the suppression of deposition transcripts when there are errors in the transcript itself—not where the substance of the deposition testimony is claimed to be tainted due to alleged malfeasance that occurred prior to the deposition.

For instance, subdivision (a) of section 2025.520 provides that, if the deposition testimony is stenographically recorded, the deposition officer shall provide notice when the transcript is available for reading and correction. (CCP, § 2025.520, subd. (a).) Subdivision (b) then provides that the deponent shall have 30 days following the notice provided for in subdivision (a) to change the form or substance of an answer to a question posed at the deposition. (Id., § 2025.520, subd. (b).) As an alternative to subdivision (b), subdivision (c) provides that, “within this same period, the deponent may change the form or the substance of the answer to any question and may approve or refuse to approve the transcript by means of a letter to the deposition officer . . . .” (Id., § 2025.520, subd. (c).) Finally, subdivisions (d) and (e) provide for the shortening of the 30-day time period for corrections and that the deposition officer shall indicate whether the deponent has approved or refused to approve the transcript. (Id., § 2025.520, subd. (d) and (e).)

Each of the above provisions is geared towards the language of, and ability of the deponent to correct, the wording of the transcript. This interpretation is in line with the secondary sources addressing the matter, which indicate that “[a] motion to suppress a deposition transcript is appropriate when there are errors in the reporting of the deposition testimony, rather than in the testimony itself, the deposition reporter has refused to voluntarily correct the transcript and issue an amended version, and the opposing party refuses to stipulate to the reporter’s errors.” (Matthew Bender & Co., 2-51 Cal. Deposition and Discovery Practice, § 51.83 (2014), emphasis added.) Similarly, motions to suppress have been deemed appropriate where there are irregularities in the taking and transcribing of the deposition, such as where “[t]he room in which the deposition was taken had no lighting other than a spotlight directed at [the deponent], and was heated to 80˚” and where the camera operator during a video deposition inappropriately used the zoom lens to focus exclusively on the deponent’s face.” (See Rutter Guide Forms, § 13:113.)

Plaintiff relies upon the holding in Peat, Marwick, Mitchell & Company v. Superior Court (1988) 200 Cal.App.3d 272 (“Peat Marwick”), for the proposition that the Court has the authority to suppress the deposition based upon attorney Lawson’s allegedly unethical conduct. In that case, the plaintiff retained an accounting firm as its expert witness to support its claim that the defendant had committed accounting malpractice. (Peat Marwick, supra, 200 Cal.App.3d at p. 275.) After the accounting firm had been retained as the plaintiff’s expert, the defendant entered into a merger with the accounting firm. (Id., at p. 278.) When the plaintiff found out about the merger, it requested sanctions, including an order precluding the defendant from controverting the matters to which the expert would have testified. (Id., at p. 280.) The plaintiff asserted that the merger created a conflict of interest and gave rise to a situation where the plaintiff’s confidential and privileged information concerning the litigation could be shared with the defendant.

Following an evidentiary hearing, the trial court granted the motion for sanctions, precluding the defendant from introducing evidence concerning the matters to which the expert was retained to testify. (Id., at p. 280.) The trial court found that the merger “seriously eroded the ability of plaintiffs to prepare and present their case.” (Id., at p. 282-283.)

On appeal, the defendant argued that the preclusion order was, in effect, a discovery sanction and that such sanctions are not authorized under the Civil Discovery Act. (Id., at p. 285.) The court of appeal rejected this argument. First, the court noted that the sanction at issue was not a discovery sanction, stating that “[t]he flaw [in the argument] is its first premise: the court’s order precluding evidence is not a sanction for the abuse of discovery procedures, but is a remedy for abuse of the litigation process.” (Id.) The court then proceeded with a lengthy discussion of the trial courts’ inherent authority to control and prevent abuses in the use of their process, which the court noted does not depend upon legislative authorization. (Id., at pp. 287-289.) The court further noted that, in exercising this inherent authority, “trial courts generally employ the ‘motion in limine,’ which is ‘not expressly authorized by statute’ but is within the trial court’s ‘inherent power to entertain and grant.’” (Id., at p. 288, quoting 3 Witkin, Cal. Evid. (3d ed. 1986) Introduction of Evid. At Trial, § 2011.)

Rather than supporting Plaintiff’s argument, the Court finds that the procedural posture and holding in Marwick actually demonstrates that Plaintiff’s motion is not properly before the Court. It is well-settled that the court’s inherent power to curb abuses and promote fair process extends to the preclusion of evidence. (Marwick, supra, 200 Cal.App.3d at p. 288.) However, as indicated in Marwick, the proper mechanism to raise such issues is a motion in limine. County of Santa Clara Local Rules of Court, rule 8(D) provides that motions in limine “must be lodged in the department of the trial judge or, if none, with the Court’s calendar secretary.” (Sup. Ct. Santa Clara County, Local Rules, rule 8(D)(1), emphasis added.) In other words, assuming Plaintiff is entitled to some form of relief based upon Mr. Hager’s former counsel’s alleged ethical violations, which the Court does not decide at this juncture other than holding that Plaintiff is not entitled to an order suppressing the deposition transcript, the relief must be sought from the trial judge.

Based upon the above discussion, the Court finds that an alleged ethical violation, if any violation occurred in this matter, is not a proper basis to bring a motion to suppress a deposition transcript under Code of Civil Procedure section 2025.520, subdivision (g).

B. Existence of an Ethical Violation

Assuming for the moment that Plaintiff may seek an order to suppress the deposition transcript for Mr. Lawson’s alleged ethical violations under Code of Civil Procedure section 2025.520, a proposition for which Plaintiff cites no authority, Plaintiff has not supplied the Court with sufficient information to determine whether an ethical violation has occurred in the first instance.

The specific ethical violations alleged by Plaintiff are (1) that Mr. Lawson improperly solicited Mr. Hager as a client in violation of California Rules of Professional Conduct, rule 1-400, (2) that Mr. Lawson took on the representation of Mr. Hager knowing that Mr. Hager’s interests were aligned with Plaintiff and at the same time receiving compensation for the representation by National, and (3) that Mr. Lawson did not inform Mr. Hager that he was receiving compensation from National in violation of California Rules of Professional Conduct, rule 3-310.

Defendant refutes each of these propositions through the declaration Mr. Smith—National’s private investigator. Concerning the first point raised by Plaintiff, Mr. Smith declares that, after he informed Mr. Hager that either Plaintiff or National would probably want to take his deposition, Mr. Hager indicated that he would like an attorney at the deposition but he could not afford one. (Decl. of Smith, ¶¶ 24-33.) Mr. Smith informed Mr. Hager not to worry about having money to pay for an attorney because National had agreed to pay an independent attorney to represent him at the deposition. (Id., ¶ 30.) Mr. Smith provided Mr. Hager with information on Mr. Lawson and “told [Mr. Hager] that he would have to decide, after speaking with Mr. Lawson, if he wanted Mr. Lawson to be his attorney.” (Id., ¶ 33.) Mr. Hager agreed to speak with Mr. Lawson and acknowledged that he would expect a call from the attorney. (Id.)

Concerning the second point raised by Plaintiff, Mr. Smith declares as follows:

There has never been any doubt in my mind that Paul Hager has understood from my very first contact with him that I was working for attorneys for Fairchild, who were defending Fairchild in a lawsuit brought on behalf of his son, Michael. . . .

On March 24, 2013, during our initial telephone conversation, after I told Paul that I was working for lawyers who represented Fairchild in a lawsuit filed on behalf of his son, Mr. Hager expressed great surprise about the issue of a lawsuit, stating, “that happened so long ago, they must have made a claim back then.” I told him that the lawsuit had been filed in 2010 with Gerda Hager acting as the conservator for Michael. Mr. Hager said that he knew nothing about the lawsuit and again stated he was surprised that it had only been filed in 2010 . . . . (Decl. of Smith, ¶¶ 9-10.)

Finally, as to the third point raised by Plaintiff, National directs the Court to an email sent to Mr. Hager by Mr. Smith prior to the deposition, reiterating that Mr. Lawson would be receiving compensation from National. (Decl. of Smith, Ex. 3.)

The Court takes no position as to whether Mr. Smith or Plaintiff’s version of the events surrounding Mr. Lawson’s representation of Mr. Hager is accurate. The point is that the facts concerning the alleged ethical violations are disputed and the Court is not in a position to rule on the matter. In any event, even if the Court interpreted Code of Civil Procedure section 2025.520 as authorizing motions to suppress a deposition transcript on the basis of ethical violations—an interpretation that the Court does not adopt—Plaintiff has not demonstrated that an ethical violation has occurred.

C. Affect of Alleged Ethical Violation on Mr. Hager’s Testimony

Finally, even assuming that Plaintiff’s motion is procedurally proper, and further assuming that Plaintiff has established the existence of an ethical violation, the Court would nonetheless find that Plaintiff has failed to justify the suppression of the deposition transcript because Plaintiff has presented no evidence that Mr. Hager’s testimony would have been any different in the absence of the alleged violation. This is the most important aspect of the Court’s analysis on Plaintiff’s motion.

Mr. Hager executed two declarations in this case. He affirmed the veracity of those declarations during his deposition. Indeed, during the deposition, the following exchange took place between Plaintiff’s counsel and Mr. Hager:

MR. PEEBLES: Do you think your testimony is helping Michael get compensation from Fairchild?

MR. KATZ: Objection. Argumentative.

THE WITNESS: I hope so.

MR. PEEBLES: It’s not.

MR. KATZ: Oh, Counsel –

MR. LAWSON: Now, that’s purely argumentative.

MR. KATZ: — come on.

MR. LAWSON: Do you need a break?

MR. PEEBLES: No. I’m almost finished.

THE WITNESS: I have to – what’s that – say the truth. That’s what I think. That’s why I don’t like to discuss with other people, because I think that’s personal. (Hager Depo., pp. 152:14-25-153:1-2.)

Plaintiff’s counsel makes much of the fact that Mr. Hager is 85 years old and an immigrant. Having read the deposition transcript, however, the Court found Mr. Hager to be quite sharp—understanding the questions posed by counsel for both parties and to be articulate in his responses.

In his declaration filed in support of Plaintiff’s motion to suppress, Mr. Hager indicates that he was tricked by Messrs. Smith and Lawson and counsel for National into thinking that they represented the interests of Mr. Hager’s son. Notably absent from the declaration, however, is a statement that Mr. Hager’s testimony would have been any different if he was represented by another attorney. Thus, the Court is left wondering what the result would be if it were to suppress the deposition transcript. Surely, Defendant would seek to take Mr. Hager’s deposition again and, assuming Mr. Hager testified truthfully during the first deposition, which Mr. Hager affirmed at the deposition itself, the testimony would be no different.

Based upon the above discussion, the Court finds that the reasons given for Mr. Hager’s refusal to approve his deposition transcript do not require the rejection of the deposition under Code of Civil Procedure section 2025.520, subdivision (g). Consequently, Plaintiff’s motion to suppress the deposition transcript is DENIED.

II. Request for Monetary Sanctions

Defendant asserts that “Plaintiff should be sanctioned for filing this Motion without substantial justification.” (Opp., p. 15.) Defendant cites Code of Civil Procedure section 2025.520, subdivision (h) as the statutory basis for the request. That provision provides that “[t]he court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to suppress a deposition under this section, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Defendant’s request is not code-compliant. Code of Civil Procedure section 2023.040 provides that “[a] request for a sanction shall . . . [be] accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” Neither Defendant’s opposition nor defense counsel’s declaration in support of the opposition indicate the time spent defending the motion or the amount of sanctions requested. Defendant’s request for sanctions is therefore DENIED.

Conclusion and Order

Plaintiff’s motion to suppress the deposition transcript of Paul Hager is DENIED.

Defendant’s request for monetary sanctions is DENIED.